Skip to main content

Article 36/2022

On what basis did the labour appeal court recently, in SA Teachers Union obo Kruger v Gauteng Department of Education and Others (2021) 32 SALLR 12 (LAC); (2021) 42 ILJ 827 (LAC), determine that the remedies of compensation and reinstatement cannot be granted simultaneously?

_____________________________________

The principles identified by the court entail, amongst others, the following:

in the case of a dismissal for misconduct or incapacity: being substantively or substantively and procedurally unfair

  • the primary relief is reinstatement or re-employment
  • the employee is to resume employment on the same terms and conditions as at the date of dismissal
  • the extent of retrospectivity is dependent on the discretion to be exercised by the arbitrator – the only limitation on such discretion is that it cannot be fixed earlier than the actual date of dismissal
  • compensation is an alternative relief to the primary relief and is mutually exclusive to the remedies of reinstatement/re-employment

dismissal for operational requirements/automatically unfair: substantively or substantively and procedurally unfair

  • the same principles as set out above apply here subject to s193(3) of the LRA – in addition, any other order may be made as considered to be appropriate

dismissal for misconduct/incapacity/operational requirements/automatically unfair: procedurally only unfair

  • in terms of s193(2)(d) of the LRA, no reinstatement/re-employment is applicable but only compensation

What are the principles governing common purpose misconduct?

What are the principles governing an employee’s duty to disclose to his/her employer information about misconduct?

In Article 31, we dealt with the distinction between desertion and abscondment.

In Article 32, we dealt with the misconduct of deeming desertion.

In this article, we will deal with termination of employment by operation of law in the private sector – similar to deeming to be discharged in the public sector.